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Uses of the Term 'Prerogative! 267

main object of constitutional struggle in this country to render the Ministers of the Crown more and more directly and certainly accountable for the mode, time, and degree in which the prerogative is exercised. In some cases, indeed, where the quality or amount of the prerogative is in any degree uncertain, or too much limited for the purpose in hand, an Act of Parliament is passed to clear up the doubts or to supplement the deficient prerogative by conferring on the Crown new and special powers. An instance of this is at hand in the Act which enables the Crown, by its Ministers, to publish Articles of War for the administration of the Army. The limits of the prerogative in this sense areon the whole less shifting, and defined with greater legal precision, than the limits of the prerogative in the other sense. Though the use of the word Prerogative for both purposes is in the highest degree inconvenient, the two senses of the term are really existent and must be separately examined in any exhaustive constitutional inquiry. In the present section the first sense of the term Prerogative will be alone considered, and the immediate subject of investigation will therefore be the relation of the Sovereign to those who may be properly' called the Ministers of the Crown. In the next section the consideration of the other use of the term Prerogative will introduce a discussion as to the relation of the Ministers of the Crown to Parliament.

In order to determine the actual relation of the Sovereign to the Ministers of the Crown, as developed by the most recent history, it is necessary to point out that those Ministers, in their organised character as a Cabinet, are a mere accidental historical outgrowth of I the older Privy Council; and that they occupy a posi

tion somewhere intermediate between the Houses of Parliament and the Crown, of a kind to which no precedent in former times, and no institution in other countries, supplies any exact analogy. The problem for many centuries before the country was, how to provide an effective administrative Council close to the Sovereign, and yet to secure for Parliament the largest possible amount of control, both over the Council in its corporate capacity, and over every individual member of it. A variety of devices were resorted to in different ages to secure these ends, among which may be noted spasmodic and almost revolutionary appeals to the King to dismiss 'evil counsellors;' impositions on the King of specially-named counsellors for temporary purposes, or in order to remedy crying wrongs and abuses; the desultory use of the weapon of impeachment; the more formal effort resorted to in the Act of Settlement to secure responsibility by requiring that 'all matters 'and things relating to the well-governing of the king'dom, which are properly cognisable in the Privy 'Council, by the laws and customs of the realm, should 'be transacted there, and all resolutions taken there'upon should be signed by such of the Privy Council 'as should advise and consent to the same;' and the persistent remonstrances, in Parliament and in the press, during George III.'s reign, against the irregular counsels believed to be afforded to the Sovereign by those who were designated 'the King's friends.' But, side by side with the more recent of these expedients, there was growing up the institution of the Cabinet Council, which, with all its defects and occasional jars in the working, seems admirably qualified to attain the end of combining the utmost concentration

Origin of the Term ' Cabinet Council.' 269

and unity of executive force with a very considerable degree of responsibility from day to day to both Houses of Parliament.

The earliest mention of the Cabinet Council is in Pepys' Diary. Writing on the 16th of November, 1667, Mr. Pepys says: 'Met Mr. Gregory, my old acquaint'ance, an understanding gentleman; and he and I 'walked an hour together, talking of the bad prospect 'of the times; and the sum of what I learn from him 'is this: that the King is the most concerned in the 'world against the Chancellor, and all people that do 'not appear against him, and therefore is angry with 'the Bishops, having said that he had one Bishop on 'his side, Crofts, and but one: that Buckingham aDd 'Bristoll are now his only Cabinet Council; and that, 'before the Duke of York fell sick, Buckingham was 'admitted to the King of his Cabinet, and there stayed 'with him several hours, and the Duke of York shut 'out.'* According to Lord Clarendon, however, the expression 'Cabinet Council' originated as early as 1640, in the following way: 'The bulk and burden of 'the State affairs lay principally upon the shoulders of 'the Archbishop of Canterbury, the Earl of Strafford, 'and the Lord Cottington; some others being joined to 'them, as the Earl of Northumberland for ornament, 'the Bishop of London for his place, the two Secretaries, 'Sir H. Vane and Sir Francis Windebank, for ser'vice and communication of intelligence; only the 'Marquis of Hamilton, indeed, by his skill and interest, 'bore as great a part as he had a mind to do, and had 'the skill to meddle no further than he had a mind. 'These persons made up the Committee of State, which 'was reproachfully after called the junto, and enviously 'then in the Court the Cabinet Council.'l

1 Diary and Correspondence of Samuel Pepys, F.R.S., 5th ed. vol. m. p. 301.

In the fourth volume of his History of England, Lord Macaulay has traced with considerable precision the rise of a true responsible Ministry to the period in the reign of William III. which intervened between 1693 and 1696. He describes how in the earlier years of the reign of William there was no Ministry at all; and that at the close of 1693 the chief offices in the Government were distributed not unequally between the two great parties; that the men who held those offices were perpetually caballing against each other, haranguing against each other, moving votes of censure on each other, exhibiting articles of impeachment against each other; and that the temper of the House of Commons was wild, ungovernable, and uncertain. 'Everybody could perceive,' says Lord Macaulay, 'that at the close of 1696 all the principal 'servants of the Crown were Whigs, closely bound 'together by public and private ties, and prompt to 'defend one another against every attack, and that the 'majority of the House of Commons was arrayed in 'good order under those leaders, and had learnt to 'move like one man at the word of command.' In giving the history of the period of transition and of the steps by which the change was effected, Lord Macaulay attributes the 'chief share in forming the 'first English Ministry' to Sunderland, who had disappeared at the time of the flight of James, and did not reappear at Court till 1691, nor attend regularly

1 History of the Rebellion, vol. i. p. 211, ed. 1S49.

'The First English Ministry! 271

in the House of Lords till the following year. Early in 1693, it was rumoured that Sunderland was consulted on all important questions relating to the internal administration of the realm; and Lord Macaulay says that he formed the opinion that 'as long as the King 1

* tried to halance the two great parties against each 'other, and to divide his favours equally between them, 'both would think themselves ill-used, and neither 'would lend to the Government that hearty and steady 'support which was now greatly needed.' His Majesty must make up his mind to give a marked preference to one or the other; and there were weighty reasons for giving the preference to the Whigs. Lord Macaulay proceeds to describe the formation of the first Whig Ministry, observing that the organisation of the Whigs 'was not indeed so perfect as it afterwards became, but 'they had already begun to look for guidance to a small

* knot of distinguished men, which was long afterwards 'widely known by the name of the Junto. There is, 'perhaps, no parallel in history, ancient or modern, to 'the authority exercised by this Council, during twenty

* troubled years, over the Whig body. The men who 'acquired that authority in the days of William and 'Mary continued to possess it without interruption, in 'office and out of office, till George I. was on the 'throne.'l

The problem which now had to be solved was how

to reconcile this effective Parliamentary Committee, the

institution of which is thus seen to have been due

to the special condition of parties in the time of

William III. and to the personal character and peculiar

1 History of England from the Aecession of JameG II. By Thomas Babington Macaulay. Vol. iv. p. 435.

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